Time to Look at the Legal System

12 March 2021

As a schoolkid, I was a good debater and the vocational guidance advice was that I should be a barrister.  My father was dead against this idea. His dictum was, ‘Don’t go to court, you will get law but you will not get justice’.

He was a surgeon and to prove his point he took me to a court case where he was an expert witness. A company that manufactured concrete pipes was having an industrial dispute. The workers had stopped work and the union delegate was standing on a pipe giving an impassioned speech about how terrible the company was and that they should all go out on strike immediately.  As he spoke a runaway truck crashed through the fence, knocked him off his pipe and broke his leg. It seemed obvious that was injured but he was not at work.  The Union claimed that he was at work.  The employer argued that he was not at work, and threw in that he was not injured either, which was why an expert witness was needed. 

My father’s point was the process had nothing to do with the truth of the matter- it was just a talkfest that would give me the sh-its after a while.  He won in the sense that I did not do law.

40 years later I went to a Family Law barrister as a support person for a friend getting divorced.  The barrister, unprompted, said that he had thought about being a doctor, and regretted having done law as, ‘there is right and wrong on both sides, it all becomes adversarial, it is random which side you are on, and it is all about money.’

When I lived in New Zealand there was a high profile trial where a man had allegedly shot his brother in law. The brother in law was to inherit the family farm and he was jealous. The evidence looked very strong. His barrister managed to create a shadow of doubt in one of the juror’s minds and he walked free.  It then came out that the man had been released charged with damaging farms, killing stock and burning buildings where he felt that he had been slighted, But the jury had not been allowed to know this.  The defence barrister, Greg King, a family man with two children suicided a few months later.  (Radio NZ 17/10/13). In his obituary people said he was a good kind man who did jobs that had to be done but no one else wanted.

I had a barrister acquaintance who said he had had a bad week in that he had been vehemently abused by a stranger as he tried to buy a pizza.   He had been recognised by his critic as the defence barrister for a paedophile. He felt that this was completely unreasonable as he was ‘just doing his job’.

Our legal system is adversarial. Effectively there is a debate, with one side saying that the person is guilty and the other that they are not.  It is about winning the argument; the truth is often an early casualty. The people running the system are as affected as those in the dock, albeit differently.  The adversarial model in our legal system spills over into our parliamentary party system.  It is more about winning than the truth. 

Napoleon reformed the French legal system by making it inquisitorial rather than adversarial. The object of all parties to the court proceedings is to get to the truth, then the judge deals with that. Lawyers trained in our system think this is a terrible idea, but it seems very reasonable to me.

Now, because the complainant in the alleged rape by Christian Porter is dead there supposedly cannot be an inquest. No adversary, no action.  No truth either.

Minter Ellison is a big end of town law firm which advised Christian Porter.  Now its chief executive, Annette Kimmitt is being forced to resign because she questioned the firm’s support for him.  Is giving him advice supporting him?  Obviously she is not alone in thinking so.

Is there any chance of Australia getting a cost-effective, affordable legal system that gets to the truth, or is it too long after Waterloo?

SMH article today

MinterEllison boss exits after Attorney-General all-staff email

MinterEllison’s board and its chief Annette Kimmitt have ‘‘mutually agreed’’ she will leave the law firm after she sent an all-staff email critical of a senior partner for providing advice to Attorney-General Christian Porter about a 1988 rape allegation.

In an email to staff this week, MinterEllison chairman David O’Brien said the board had come to an agreement with Ms Kimmitt that she would depart the firm.

Managing partner Virginia Briggs, who heads the firm’s infrastructure, construction and property division, will serve as acting chief executive while the board considers a permanent replacement.

Ms Kimmitt has faced pressure since she sent an all-staff email last week that was critical of veteran partner Peter Bartlett for not following ‘‘consultation or approval processes’’ before he provided advice to Mr Porter. The Attorney-General has denied the allegation.

She apologised in the email to staff who may be experiencing pain over ‘‘the nature of this matter’’ and said that she too had been ‘‘triggered’’.

The email divided the firm and implicitly questioned whether the firm was right to represent Mr Porter.

Mr Bartlett, who also provides advice to the Herald, wasn’t aware of the email until it landed in the inboxes of the more than 2000 staff and partners it was sent to, some of the firm’s lawyers have said.

Tammy Mills, Chris Vedelago